In the Estate of MONA HAYDON MASLEN

[2009] SASC 304

Supreme Court of South Australia

(Testamentary Causes Jurisdiction)

In the Estate of MONA HAYDON MASLEN

[2009] SASC 304

Judgment of The Honourable Justice White (ex tempore)

23 September 2009

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - EXECUTION - INFORMAL DOCUMENT INTENDED TO BE WILL - SOUTH AUSTRALIA - NO REASONABLE DOUBT THAT MAKER INTENDED DOCUMENT AS WILL

SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - THE MAKING OF A WILL - REVOCATION - METHODS OF REVOCATION - OTHER WILLS, CODICILS OR WRITINGS

The deceased signed a letter of directions to her executors purporting to effect a change to her will - document witnessed by one witness only - application by the executors for document to be admitted to probate as second codicil to deceased's will - whether the written document is a codicil of the testator's will - whether the document expresses the testamentary intentions of the deceased - whether the deceased intended the document to constitute a codicil to her will.

Held:  the document expresses the testamentary intentions of the deceased - the deceased intended the document to constitute a codicil to her will - the document to be admitted to probate as a second codicil to the deceased's will.

Wills Act 1936 (SA) s 3, s 8, s 12, referred to.

In the Estate of MONA HAYDON MASLEN
[2009] SASC 304

Testamentary Causes Jurisdiction

1. WHITE J: (ex tempore)    This is an application under s 12(2) of the Wills Act 1936 (SA) to have an imperfectly executed document admitted to probate as a second codicil to a will.

2. Mona Haydon Maslen (the deceased) died on 14 January 2009 (aged 88 years).  The deceased had made a will on 21 February 1995.  By a codicil made on 12 March 2002, the deceased replaced the executors of her will.

3. On 16 August 2005, the deceased signed a letter of directions bearing the date 8 August 2005.  The letter was addressed to the executors and was signed in the presence of, and witnessed by, the deceased’s general practitioner, Dr Mills, at Murray Bridge.  He was the only witness to the deceased’s signature. 

4. The substance of the letter is as follows:

   To the Executors’ of my LAST WILL and TESTAMENT appointed in my Codicil dated 12^th March 2002.

   I write this letter as a direction for you to follow:

   1.    I DIRECT you to remove GRAEME HAYDON MASLEN as a beneficiary in my LAST WILL and TESTAMENT.

   2.    I DIRECT you to remove any family members through the marriage of GRAEME MASLEN and LORRAINE WILSON (nee) as beneficiaries in my LAST WILL and TESTAMENT.

   3.    I REVOKE any family photographs containing GRAEME HAYDON MASLEN and his immediate family to be the only items sent to him from my personal effects.

   4.    I DIRECT you to send GRAEME HAYDON MASLEN a copy of this letter.

   My direction to you in this matter relates to the lack of communication and personal contact between both GRAEME and myself.  In particular, a telephone conversation I instigated in June 2005 in which I was clearly informed not to make any future contact of any nature.

   I trust you will execute my above directions.

5. Although not expressed as a codicil, or as varying the will, it can be seen that the deceased intended the document to have the effect of removing Graeme Haydon Maslen as a beneficiary in her residuary estate.  She did this by directing the executors to “remove” Graeme Haydon Maslen and his issue as beneficiaries.  The letter did not comply with the requirements for a will contained in s 8(c), (d) and (e) of the Wills Act in that there was only one witness, and only that witness signed the letter in the presence of the deceased.  Apart from that consideration, the letter of directions could stand as a codicil to the will (the definition of “will” in s 3(1) of the Wills Act includes a codicil). 

6. A copy of the application and supporting affidavits were served on Graeme Haydon Maslen on 30 May 2009.  I also directed that he be given written notice of today’s hearing. 

7. I am satisfied as a result of the affidavit of Peter John Homburg sworn on 21 September 2009 that Mr Maslen has been given appropriate notice of today’s hearing and that he has disclaimed any interest in the will of the deceased.

8. Section 12(2) of the Wills Act provides that a document which has not been executed in accordance with the formalities required by the Act may nevertheless be admitted to probate as a will of the deceased if the Court is satisfied that the document expresses testamentary intentions of a deceased person and that the deceased person intended the document to constitute his or her will.  By reason of the definition of the word “will”, s 12(2) applies as much to codicils as it does to the principal document comprising a will.

9. For the purposes of the application, I have received and relied upon a joint affidavit of the Executors, Kym Robert Maslen and Robyn Ellen Brown, sworn 30 March 2009 and 25 March 2009 respectively, an affidavit from the deceased’s general practitioner, Dr Mills, sworn 13 March 2009 and an affidavit from one of the deceased’s daughters-in-law, Sharon Jane Maslen sworn 30 March 2009.  I am satisfied that it is appropriate for this Court to act on the basis of the facts disclosed in those affidavits.

10. There are a number of indications that the deceased intended the letter of 8 August 2005 to express her testamentary intentions and that it be a variation to the will which she had made on 21 February 2005.  The document purports to be a direction to the executors of the will; it refers to the will and the first codicil; and it was executed with some degree of formality (being both signed and witnessed) suggesting that the deceased saw the document as being important.  There is evidence that the deceased referred to the document at different times as a “codicil” and as a “change to her will”.  Dr Mills’ medical notes made on 16 August 2005 record that the deceased asked him to “witness a change to her will”.  There is also evidence that the deceased had made several attempts to establish communication with Graeme Haydon Maslen but had been rebuffed by him.  Finally, I am satisfied that the imperfect form of the document is a consequence of the deceased refraining from obtaining legal assistance, with a view to saving costs, and not appreciating the requirement for there to be two witnesses.

11. In the light of these matters, I am satisfied that both limbs of s 12(2) have been established.

12. I order that the document being the exhibit marked “A” referred to in the affidavit of Andrew Whitfield Mills sworn on 13 March 2009 be admitted to probate as a second codicil to the last will of the deceased and that probate of the will made on 21 February 1995 together with the codicils made on 12 March 2002 and 16 August 2005 be granted to Kym Robert Maslen and Robyn Ellen Brown, the executors named in the will.  I also order that the costs of, and incidental to, the application and order be paid out of the estate of the deceased.